Inventarios

The Tenth Circuit’s opinion in First Unitarian Church is a controversial

ending to a complex situation. The factual distinctions among cases

implicating the public forum doctrine do not fully justify the holdings.

196

To further illustrate that the factual distinctions are not sufficient, the

district court compared the facts in this case to many of the same cases,

and the district court ruled differently than the Tenth Circuit.

197

_Relying

on this line of cases, especially when applying the public forum doctrine

to private property, will continue to be problematic for future litigants

until the doctrine is made clearer.

The court should have taken into consideration the LDS Church’s

property stake much earlier in the case. The court’s decision to analyze

the easement separate and apart from the LDS Church’s proprietary

interest is unsettling. First, private property owners have no duty to hold

out their property as public fora for expressive purposes.

198

_Second,

most government property is not open for expressive purposes. “The

government would simply be unable to perform its proper functions if it

had to work with and around a wide range of speech uses competing for

government space.”

199

_{Similarly, not every property burdened by a}

government easement should be a public forum. The private party’s

proprietary interest must be respected when determining the public

forum status of a government easement on private property.

200

The Venetian court stated that “by dedicating the property to public

use, the owner has given over to the State . . . ‘one of the most essential

sticks in the bundle of rights that are commonly characterized as

property,’ the right to exclude others.”

201

_{If this statement is conclusive}

in and of itself for public forum analysis, then the City’s easement

through Main Street Plaza has to be a traditional public forum. Consequently,

196. “[F]our different federal courts, confronted with three substantially similar programs, approached the public forum doctrine in five different ways . . . [and] reached three different decisions regarding the type of forum at issue.” Suzanne Stone Montgomery, Note, When the Klan Adopts-A-Highway: The Weakness of the Public Forum Doctrine Exposed,77 WASH.U.L.Q.557, 558 (1999) (footnotes omitted).

197. See supra notes 15–30 and accompanying text. 198. See supra note 144.

199. Bezanson & Buss, supra note 27, at 1473.

200. See Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1972).

201. Venetian Casino Resort v. Local Joint Executive Bd., 257 F.3d 937, 946 (9th Cir. 2001) (quoting Dolan v. City Tigard, 512 U.S. 374, 393 (1994)).

the rest of the court’s analysis on history and compatibility was moot

and, in fact, hardly relevant. Under this reasoning, a private owner who

has property burdened by an easement dedicated to public use has to

hold out the property as a traditional public forum.

The question for the courts should be whether the private property is

public in nature, not whether it is like public property, because “property

[does not] lose its private character merely because the public is

generally invited to use it.”

202

_{Thus, limiting a court’s analysis of the public}

forum doctrine to whether private property has been dedicated to public

use does not adequately address all of the concerns raised by this

Casenote. The analysis should not be so simple when both property and

First Amendment rights are in conflict. These concerns include whether

an easement can have a limited public use, and whether the separate

quality of the private property can put the public on notice that they are

not accessing a public forum.

203

Determining whether private property should be subject to constitutional

standards, such as the public forum doctrine, is “necessarily fact-bound.”

204

Therefore, courts should look beyond the document dedicating the private

property to public use. They must also determine whether the property’s

characteristics put the public on notice that a private party owns the

property.

Under this modified public forum doctrine, courts will only use the

first and second factors, objective characteristics and compatibility of

speech, in analyzing private property burdened by a government easement

or regulation.

205

_{Their analysis will be limited to scrutinizing the objective}

characteristics of the property in deciding whether the public has notice

of the private nature of the property. For example, if the government

sold a traditional public forum, the private party should make the

necessary changes to the property in order to put the public on notice.

These changes might include putting up signs or changing the nature of the

property, as the LDS Church did to Main Street. In addition, courts will

evaluate the compatibility of the government property interest to

determine if it has been dedicated for public use.

206

_{In this case, there}

was a public dedication for pedestrian access and passage.

202. Lloyd Corp., 407 U.S. at 569.

203. See Venetian Casino Resort, 257 F.3d at 945 (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992)).

204. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982); see also Citizens to End Animal Suffering & Exploitation, Inc. v. Faneuil Hall Marketplace,745 F. Supp. 65, 69 (D. Mass. 1990).

205. See supra note 96 and accompanying text.

206. Thus, a utility easement or an easement solely reserved for government access would not cause the private property to be dedicated for a public use. The public must be guaranteed some sort of use in order for the doctrine to even be implicated.

The courts should not look to the history of the property so that private

property owners are not unduly burdened by constitutional constraints

and so that they are not discouraged from purchasing property from the

government in the future.

207

_{In summary, under the modified approach,}

courts will decide whether the private property has been dedicated for

public use. If so, they will hold that the property is a public forum

unless the property owner puts the public on notice that the property is

now private. Under this approach, the court would have concluded that

the Main Street Plaza was not a public forum because the public had

been put on notice.

208

This method allows the government and private property owners to

determine how the sale of the property will affect the property’s public

forum status. This method will permit privately held public sidewalks

and parks to remain public fora because the public cannot tell that the

property is private while also letting the government retain easements for

limited public uses, such as pedestrian access and passage. If the

government can allow pedestrian access and passage on its property

without also creating a public forum, then government easements should

not be treated differently.

209

This method addresses all of the concerns expressed in this Casenote

and even addresses U.S. Supreme Court Justice Black’s concern regarding

the rights of the private property owner:

I have never believed that [the First Amendment] gives any person or group of persons the constitutional right to go wherever they want, whenever they please, without regard to the rights of private or public property or to state law. . . . [The First Amendment] does not guarantee to any person the right to use someone else’s property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas.210

207. Since 1998, the LDS Church has been trying to acquire Martin’s Cove, an area in Wyoming where the Martin Handcart Company, a group of LDS pioneers from Britain, became waylaid in the snow in 1856. Resistance has met the attempt to purchase the land. In January 2003, Senator Craig Thomas of Wyoming announced that the Bureau of Land Management would offer a twenty-year lease to the Church to manage the property. The Church has not yet accepted this compromise. It has expressed reluctance to accept anything other than full property rights because of the Main Street Plaza situation. Christopher Smith, Senator’s Announcement of Lease Offer on Martin’s Cove Is News to Parties, SALT LAKE TRIB.,Jan. 18, 2003, at A1.

208. See supra text accompanying notes 19–23 (outlining the changes that would put the public on notice that the property had switched owners and now belonged to the LDS Church).

209. See, e.g., supra note 120.

While this solution will help create a better balance between free

speech rights and private property rights, the entire doctrine needs

reevaluation. The places where the public speaks have changed. The

public forum doctrine guarantees a venue to speak, but the venues are

changing. The U.S. Supreme Court should take the next public forum

doctrine case on appeal, apply this modified approach, evaluate the

principles behind the doctrine, and determine how the factors could be

reworked to better meet the goals of the public forum doctrine.

In document Modelo de gestión financiera para la administración del capital de trabajo en el hospital local Santamaría de Mompox, Bolívar (página 35-39)